The ‘Black Spider Memos’ Case: An Introduction to Constitutional Law

In a talk I recently gave at the Cambridge Sixth Form Law Conference, I introduced delegates to UK Constitutional Law by way of examining the ‘Black Spider Memos’ case. The Supreme Court’s judgment in that case — more formally known as R (Evans) v Attorney-General [2015] UKSC 21 — came at the end of a long saga involving attempts by Guardian journalist Rob Evans to get hold of so-called advocacy correspondence between Prince Charles and Government Ministers. Evans’s concern was that through such correspondence, Charles may have been seeking to shape Government policy; Evans argued that it was important that people should be able to see what Charles was saying to Ministers, so that a judgement could be formed about the extent, if any, of the influence he wielded. Evans therefore sought tot have the correspondence — dubbed the ‘black spider memos’ in a nod towards the style of Charles’s handwriting — released under the Freedom of Information Act 2000. But the Government refused to release the letters, arguing that the public interest in facilitating confidential communication between Charles and Ministers trumped any public interest in releasing the correspondence. An independent tribunal — in essence, a court — ruled against the Government, ordering the letters to be released. The Government then took the extraordinary decision to overrule the tribunal.

The Supreme Court had to determine whether that decision was lawful. In doing so, the Court was exercising its power of judicial review — that is, its power to check whether the Government is acting lawfully. No-one doubted that the Government had a power to overrule the tribunal: that much was made plain by section 53 of the Freedom of Information Act. The question was whether the Government had, in the particular circumstances of this case, exercised the power lawfully. The Supreme Court ruled, by a majority of five to two, that the Government had not, and the disclosure of the letters was duly ordered. Once made public, they turned out to be less than sensational, confirming Charles’s interest in matters architectural as well as, among other things, a hitherto less well-known concern for the plight of the Patagonian toothfish.

A statutory provision which entitles a member of the executive … to overrule a decision of the judiciary merely because he does not agree with it … would cut across … constitutional principles which are … fundamental components of the rule of law. — Lord Neuberger in the Evans case

So if the letters themselves were something of a damp squib, why was the case nevertheless constitutionally significant? And what does it tell us about the nature of Constitutional Law as a subject and about the UK’s constitution more generally? The case illustrates Constitutional Law’s fundamental role in allocating authority, and the difficult questions that can arise in this area. In Evans itself, the Supreme Court had to determine a complex set of issues concerning the respective powers of the tribunal that had originally decided the case, the Minister who had sought to overrule the tribunal, and the courts themselves who were asked to overrule the Minister. In this sense, Evans illustrates Constitutional Law’s role in settling big questions about the powers that the State has and about how those powers are shared out amongst the different institutions of the State. It also illustrates how the answers to those big questions can impact upon individuals. Whether the Government had the power to overrule the tribunal ultimately determined whether an individual journalist was entitled under the Freedom of Information Act to get hold of the information he requested.

But Evans is also significant for a further reason — namely, the disagreement between the judges in the majority and those who dissented. In my talk, I explained how the two groups of Justices placed primary emphasis upon different fundamental constitutional principles — namely the sovereignty of Parliament and the rule of law — and how these different emphases led them to view the Government’s veto power under section 53 of the Act in radically different ways. This illustrates that the UK’s constitutional arrangements are not set in stone, and that while constitutions inevitably leave room for disagreement, the ‘unwritten’ nature of the British constitution creates particular scope for discord as to what fundamental principles mean and how they relate to each other. I suggested at the end of my talk that while this uncertainty can be a source of frustration, it is also one of things that can make studying Constitutional Law fascinating.

An audio recording of my talk can be accessed via the SoundCloud player above or via the University of Cambridge’s online media collection, while the slides are available here; the talk is best listened to in conjunction with the slides. Those who wish to read more about the Evans case might like to try my paper entitled ‘A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution’s Relational Architecture’; it was published in Public Law in 2015, and a pre-publication draft of it can be accessed here.

I am grateful to my colleague Daniel Bates for his assistance with making the audio recording of the talk.

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Aimed at students taking a range of public law modules, Public Law combines comprehensive coverage of the subject with depth of analysis. Written in an accessible style, it is the UK’s best-selling textbook in the field. The third edition of the book, written by Mark Elliott and Robert Thomas, was published by Oxford University Press in 2017.

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